The Tepco verdict is predictable but not insignificant

by Colin P.A. Jones

Contributing Writer

In 2012, six scientists were convicted of manslaughter by an Italian court. As members of a governmental risk assessment commission, they had misread the significance of small tremors shaking the Abruzzo region in 2009. Their conclusion that they did not presage a larger quake to come were allegedly why the town of L’Aquila was unprepared for the powerful earthquake that struck in the early hours of April 6, 2009. More than 300 people died. Had the scientists not been so sanguine, went the court’s reasoning, precautions might have been taken.

This verdict from another earthquake-prone country might seem a useful contrast to the Sept. 19 acquittal of three former executives of Tokyo Electric Power Company (Tepco) for “causing death or injury through negligence in the pursuit of social activities,” under article 211 of the Penal Code. According to the prosecution, the three knew a tsunami could overwhelm their nuclear power plant at Fukushima (as happened on March 11, 2011), but failed to take suitable precautions. The plant’s failure necessitated the evacuation of a nearby hospital and elder care facility. In the chaos, 44 people died supplying one of the necessary elements of the crime.

The acquittal was predictable. This may seem odd to those familiar with the Japanese criminal justice system’s infamous conviction rate of 99.9 percent. But the case was a rare anomaly: A case Japan’s public prosecutors didn’t want to bring; so they didn’t.

In the firing line: The three Tepco executives at the center of a recent court case (from left): Tsunehisa Katsumata, Ichiro Takekuro and Sakae Muto. | KYODO
In the firing line: The three Tepco executives at the center of a recent court case (from left): Tsunehisa Katsumata, Ichiro Takekuro and Sakae Muto. | KYODO

Take it to the PRC

When the Americans reformed Japan’s legal system during the postwar Occupation, one feature they tried to introduce was grand juries, a remnant of an age predating modern government. America is stuck with them because they are constitutionally mandated. Romanticized as acting as both “sword and a shield,” grand juries supposedly prevent abusive prosecutions and bring cases prosecutors find politically unpalatable. In reality, grand juries can supposedly be convinced to “indict a ham sandwich” (as the famous adage goes), and incidents of them bringing cases over the objections of the law enforcement establishment are unheard of today.

Japan was able to fend off grand juries, but the compromise was the creation of Prosecutorial Review Commissions: panels of randomly selected citizens who oversee prosecutorial decisions. Initially, these PRCs were rendered safely toothless. They lack the ability to stop prosecutions (heaven forbid!), but an aggrieved crime victim can petition their local PRC to review a decision not to bring charges, and that PRC could recommend another look at the case.

Prosecutors could ignore such a recommendation until 2009, however, when various reforms were wrought to the justice system in the name of increasing civic interest and participation in the courts. The centerpiece was the “lay judge” system; panels of citizens who help decide serious criminal trials. Another facet was empowering PRCs to put a criminal suspect on trial, even when the prosecutors refuse, through a kyōsei kiso (“forced prosecution”) that sees a team of court-appointed private attorneys acting as prosecutors. Instances of this happening are extremely rare; the Tepco executive trial was one of them.

Forced prosecutions have a poor track record. In the decade since, they have been possible, only nine such cases have been brought against a total of 13 people, including the Tepco execs case. So far, only two have resulted in convictions. Some foundered on procedural rocks, so not all resulted in clear acquittals either. Still, the success rate is not great.

This might be because the cases are actually difficult and prosecutors have good reasons for not taking them. Even the lawyer who led the coordinated effort to use a PRC to hold Tepco accountable acknowledged in 2015 it would be the most difficult forced prosecution ever. And this was after PRCs winnowed the targets down from more than 40 Tepco managers to the three who were actually prosecuted.

Another factor in the poor prospects might be the prosecuting attorneys’ lack of access to the full coercive powers of the state enjoyed by real prosecutors. The Tepco executive trial does not involve any accounts of the defendants being detained for prolonged periods of time, or at all. This is not to suggest they should have been, but one reason professional prosecutors may be sure of their chances in the cases they do bring is because often they have been able to use prolonged detention and other coercive practices to procure confessions from defendants and useful testimony from witnesses, even for seemingly minor offenses. In comparison, former Nissan Chairman Carlos Ghosn didn’t engage in any behavior that resulted in death but was detained for weeks on end, supposedly on suspicion of allowing his compensation to be misstated in regulatory filings.

The poor success rate of forced prosecutions does not mean the system is meaningless. The ability of PRCs to force the issue has reportedly resulted in prosecutors being more likely to prosecute when it is recommended.

And perhaps the acquittals were even the right result. The reality is the trial was about the entirety of the Fukushima disaster: Were just these three men to blame for it?

Most readers will likely be relieved to learn that the Italian scientists convicted in 2012 were exonerated in 2015 by an appellate court that criticized the prosecutors for indicting them in the first place. The only person whose conviction was upheld was a government official who had issued reassuring public announcements before the scientists had even had a chance to meet.

Tepco’s management was more than just a group of prognosticating scientists, of course, but to my knowledge no Japanese officials have been tried in connection with the Fukushima meltdown for criminal neglegence. Or for any other crime for that matter. In fact, according to public broadcaster NHK’s useful online timeline of the trial, it managed to be held with testimony from only a single government witness involved in nuclear safety regulation. Perhaps lawyers doing forced prosecutions suffer from other disadvantages as well.

Most crimes require an intent to commit them; negligent homicide is an exception, so the threshold of negligence necessary to result in criminal liability is higher than civil negligence. Criminal intent and culpability are further complicated notions to apply when corporations are involved.

“Due care” relates to foreseeability. That the possibility of a serious earthquake off the coast of Fukushima was both predictable and predicted is undisputed. In 2002, the government’s Headquarters for Earthquake Research Promotion forecasted a 20 percent chance of a quake of magnitude 8.2 or over in the relevant area. As the trial court noted, however, this prediction alone lacked sufficient objective reliability and specificity to evaluate what measures should be taken and when.

Tepco appeared to develop more focus when its Kashiwazaki Kariwa plant was damaged by a magnitude 6.8 quake off the coast of Niigata in 2007. By this time, management was also aware of calculations suggesting the plant could be hit by a tsunami over 15 meters high. The pro-prosecution version of the narrative, supported in some parts by testimony from Tepco employees and other witnesses, shows the company’s management — including the three defendants — that when presented with an expensive plan for addressing the risks, the defendants referred the matter for further consideration by external experts; kicking the can down the road to avoid another bad fiscal year. However, as noted in the court’s judgment, there is no evidence remedial measures would have been completed before the disaster occurred.

More to the point, the notion that Tepco’s management should have — or could have — unilaterally decided to shut down (another) power plant for a major safety refit without first engaging a large body of regulatory stakeholders is fantastical. As the court notes, at no point did the vague 2002 prediction result in anyone involved in regulating nuclear safety suggesting Tepco should immediately shut down and harden its plants.

Who’s to blame?

The unknown culprit: The nuclear crisis at Fukushima was the second-worst in history, yet many Japanese are unable to name any one person in government who was directly involved in implementing the policies that led to the disaster. | GETTY IMAGES
The unknown culprit: The nuclear crisis at Fukushima was the second-worst in history, yet many Japanese are unable to name any one person in government who was directly involved in implementing the policies that led to the disaster. | GETTY IMAGES

If anything, the Tepco executives’ trial demonstrates the folly (or, depending on your viewpoint, benefit) of implementing national policy through the facade of shareholder capitalism. Corporate managers are supposedly charged with maximizing shareholder value, not remediating bad policies or shoddy regulatory practices. Yet the prosecutions bear an element of such blame-shifting.

Large organizations, both corporate and governmental, can diffuse and obfuscate responsibility. Sometimes it seems that may be their true purpose, particularly in Japan. Despite suffering the second-most devastating nuclear accident in history, many Japanese people would probably struggle to name a single person in government directly involved in making or implementing the policies that led up to it.

A charitable view of the verdict might be that the court recognized the unfairness of holding only these three men criminally culpable for a disaster that, in reality, had much broader causes. A more cynical one would be that convictions in this case might have served as stepping-stones to further blame-laying in more inconvenient places. Even if nobody from the Japanese government was a defendant, the nation’s nuclear energy policy was clearly on trial. The result was thus also predictable because it is always safer to bet on the government winning in court.

Whatever they may be saying for public consumption, though surely disappointed I suspect the prosecuting attorneys may not have been surprised by the result either. Most litigation brought against Japanese government interests is predictably doomed to fail yet brought anyway. The lawyers who take such cases should be lauded for doing so. Often the significance is not in the winning or losing, but in the resulting media attention and public discussion of the issues on trial, perhaps even some sympathetic dicta from the court. As 3/11 seeps into memory, that the trial happened at all, reminding people of the sad failures of imagination involved, is in itself significant.

Colin P.A. Jones is a professor at Doshisha Law School in Kyoto and primary author of “The Japanese Legal System” (West Academic Publishing, co-authored with Frank Ravitch). The views expressed are those of the author alone.